Washington post very worried about 2A extremist SCOTUS candidate

[LittleLebowski]

Yes, please.

https://townhall.com/tipsheet/chrisreeves/2018/07/06/washington-post-warns-that-potential-supreme-court-pick-is-a-second-amendment-extremist-n2497998

[CWM11B]

And by extremist, they mean one who will take it at it's meaning. I'm all for the kind of extremists who will preserve the document that has led to the best way of life for people in recorded history. I hope they worry themselves sick.

[blues]

Yes, please.

https://townhall.com/tipsheet/chrisreeves/2018/07/06/washington-post-warns-that-potential-supreme-court-pick-is-a-second-amendment-extremist-n2497998

#metoo (https://pistol-forum.com/usertag.php?do=list&action=hash&hash=metoo)

[RevolverRob]

said that if Hardiman’s view were law, gun restrictions in states such as California, New York and New Jersey would be struck down, potentially leading to a vast expansion in legal gun ownership.

It's like these guys don't even hear themselves when they talk. What the hell is wrong with expansion of legal gun ownership? Nothing.

Sounds like a great SCOTUS nominee. A strict constitutionalist, I like it.

[fixer]

I can't get a read on any of the judges regarding 2A issues because the freaking media is in an absolute meltdown over Roe V Wade.

[Grey]

One can only hope the folks in the WH can actually nominate amd confirm a pro 2A justice. Exciting stuff but the real test will be if groups can actually get cases in front of the SC and they rule in favor of the 2A.

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[RevolverRob]

I can't get a read on any of the judges regarding 2A issues because the freaking media is in an absolute meltdown over Roe V Wade.

This part, I don't get. Is there a case pending that could overturn Roe v. Wade? SCOTUS doesn't rescind decisions. It has to hear a case that addressing similar issues.

Why does the American public believe a case that has held for over 40 years is going to get overturned? Oh, because they don't think...right.

SCOTUS, by and large, is not capricious. In most instances, they decide not to hear cases during review, that have existing applicable rulings. The conceptual idea that SCOTUS is going to take an abortion case and overturn Roe v. Wade is ignorant to the way in which SCOTUS works. The critical issues that SCOTUS addresses are ruling that tend to last for(ever). That's the whole reasoning behind the court.

ETA: I'm not a big fan of National Review - but a good piece here on Roe v. Wade and related cases - https://www.nationalreview.com/2018/07/supreme-court-unlikely-to-overturn-roe-v-wade/

[FNFAN]

This part, I don't get. Is there a case pending that could overturn Roe v. Wade? SCOTUS doesn't rescind decisions. It has to hear a case that addressing similar issues.

Why does the American public believe a case that has held for over 40 years is going to get overturned? Oh, because they don't think...right.

SCOTUS, by and large, is not capricious. In most instances, they decide not to hear cases during review, that have existing applicable rulings. The conceptual idea that SCOTUS is going to take an abortion case and overturn Roe v. Wade is ignorant to the way in which SCOTUS works. The critical issues that SCOTUS addresses are ruling that tend to last for(ever). That's the whole reasoning behind the court.

ETA: I'm not a big fan of National Review - but a good piece here on Roe v. Wade and related cases - https://www.nationalreview.com/2018/07/supreme-court-unlikely-to-overturn-roe-v-wade/

It's merely an expression of the concepts taught in Saul Alinsky's, "Rules for Radicals" seeking to overwhelm the public with negativity regarding long held precepts generated by our Constitution. Hillary wrote her college thesis about the Alinsky method.

[Glenn E. Meyer]

Read an article, which I can't find now, by the head of some antigun group about how Wayne LaP. is viewing this nomination as the NRA's last chance to get some SCOTUS action which is positive for gun rights (which they oppose). It went through the list of state law and circuit court blows to the RKBA. The guy has a point - Congress has totally abandoned any gun legislation for the RKBA (bait and switch, vote Republican - don't be afraid of the NRA, chaos reigns, Ryan (Give me a tax break) - I'll pull those proposals as soon as I can! If the next justice isn't solidly for the broad view of the 2nd Amend. and has some past indication of such (Hardiman - https://www.washingtonpost.com/politics/supreme-court-candidate-thomas-hardiman-an-extremist-on-gun-rights/2018/07/05/22726b70-8057-11e8-bb6b-c1cb691f1402_story.html?utm_term=.f9297b4281e5 for a direct link), I predict (da DAH!) the court will do jack squat on the issues. Even with him, Gorsuch, Thomas - they have to convince Alito and Roberts to grant Cert (one needed) and then vote for a good decision - not the crap that Scalia put in to pacify Kennedy (or so we are told).

I would tell Trumpster on the sly (if I were Wayne LaP.) that if he doesn't come across, forget the big push for him in 2020. Giving a speech to the NRA by Trump and Wayne giving Ollie North some tanna leaves to be figurehead won't get things done. My NRA mag had an editorial that the antiguns are scared poopless by Ollie (give me a break). Same old rant - bad messaging.

My tin foil hat says both parties don't want their social issues resolved as then funding raising drys up. If the Court said Roe v. Wade stands and state limits are wiped out and the 2nd. Amend. wipes out all state limits on weapons types, reciprocity rules, carry for law abiding citizens is Constitutionally protected.

Wayne, Nancy, Chuck will have to chip in to get a Chik-fil-A franchise to make a living.

[Jeep]

Read an article, which I can't find now, by the head of some antigun group about how Wayne LaP. is viewing this nomination as the NRA's last chance to get some SCOTUS action which is positive for gun rights (which they oppose). It went through the list of state law and circuit court blows to the RKBA. The guy has a point - Congress has totally abandoned any gun legislation for the RKBA (bait and switch, vote Republican - don't be afraid of the NRA, chaos reigns, Ryan (Give me a tax break) - I'll pull those proposals as soon as I can! If the next justice isn't solidly for the broad view of the 2nd Amend. and has some past indication of such (Hardiman - https://www.washingtonpost.com/politics/supreme-court-candidate-thomas-hardiman-an-extremist-on-gun-rights/2018/07/05/22726b70-8057-11e8-bb6b-c1cb691f1402_story.html?utm_term=.f9297b4281e5 for a direct link), I predict (da DAH!) the court will do jack squat on the issues. Even with him, Gorsuch, Thomas - they have to convince Alito and Roberts to grant Cert (one needed) and then vote for a good decision - not the crap that Scalia put in to pacify Kennedy (or so we are told).

I would tell Trumpster on the sly (if I were Wayne LaP.) that if he doesn't come across, forget the big push for him in 2020. Giving a speech to the NRA by Trump and Wayne giving Ollie North some tanna leaves to be figurehead won't get things done. My NRA mag had an editorial that the antiguns are scared poopless by Ollie (give me a break). Same old rant - bad messaging.

My tin foil hat says both parties don't want their social issues resolved as then funding raising drys up. If the Court said Roe v. Wade stands and state limits are wiped out and the 2nd. Amend. wipes out all state limits on weapons types, reciprocity rules, carry for law abiding citizens is Constitutionally protected.

Wayne, Nancy, Chuck will have to chip in to get a Chik-fil-A franchise to make a living.

All four of the leading nominees are textualists in the general Scalia mold; all four are likely to be better than Kennedy and there are cases percolating along that probably can be brought before the Supreme Court in the next few years.

Thus, while you are almost certainly correct about the funding--the phrase on Capitol Hil is how many "election cycles" a particular issue will be "good for" (for raising money that is) I'm not sure that this issue can be postponed.

As for Roe v. Wade, (or really Planned Parenthood v. Casey which perhaps changed the analysis of these case (to the extent there is any--Roe could have been written to reach the conclusion that all abortions are unconstitutional with the change of relatively few words; there is almost no actual analysis is the opinion while Casey's guidance is unclear at best)) expect sooner or later that some court will either overturn it and return the issue to the states, or recast it as a European-style regime. In neither case will much actually change since NYC and LA will continue to have lots of abortions and North Dakota few.

[Glenn E. Meyer]

Would a 'textualist' view state bans as unconstitutional? Would they state that Heller should wipe out the draconian protocols for getting a handgun that still exist in many places? Or do they go with some 'restrictions' that allow classes of weapons to be eliminated and confiscated, ammo to be limited, etc.?

That is the million dollar question. If state bans exist, each rampage might move more states into the restrictive category.

As far as funding, just got a NRA mailing saying membership pricing is going up $10. Is that good planning on their part? Sign up for many years to beat the increase and get some 'gift'? Not the time to do this.

[Serpico1985]

This may be a little off topic but stare decisis is bullshit (why would you continue to uphold a horrible ruling) and Roe was one of the worst decisions the SC has ever made. Emanations of penumbras. Can you possibly come up with a ham-fisted, openly bias way to justify a personal belief? I would hope that if we get a SC pick who is a textualist or whatever you want to call them, they would grant certiorari for an abortion case.

It continues to baffle me why textualist's are considered extremist by the left. What is extreme about interrupting something as it was written and in the context it was written? If your not a textualist then you are essentially just ruling with emotion and empathy and the rule of law no longer applies.

The left has had the SC on their side for the better part of 80 years. I'd say its about time it swings back to realm of reason.

P.S. It doesn't really baffle me why the left labels textualists as extremist. They foresee the potential end of their strangle hold on the SC. It's not just the 2nd and abortion on the line. The SC was itching to massacre the 1st also. If we manage to get a true conservative on the court in place of Kennedy this will buy us a few more years before we go the way of Rome.

Also, I think that some time in the future humanity will look back on abortion and wonder what in the hell were we thinking (kinda like slavery).

[RevolverRob]

Before we get off into the nuances of Roe v. Wade, let's remember that Planned Parenthood v. Casey successfully gutted the bulk of Roe. What has been guaranteed by the court will stand, that abortion is a right protected under the fourteenth amendment. As a result, we don't need to revisit the discussion of abortion in the high court. The largest legal challenges to abortion is what constitutes, "undue burden" (established in Casey) - which is at present a decision for the states. If a case were to come back to SCOTUS it will be to address the definitions of "undue burden", textualists or not are unlikely to rule in a way that Pro-Lifers would view as positive. They will either determine that existing regulations are constitutional or deem them unconstitutional and indicate they are "undue burdens". As it stands, the constitutionality of abortion is a settled matter - the constitutionality of legislative restrictions and access is not as settled, but remains a states issue, not a federal one.

So, nobody needs to get hot and bothered that abortion is going away - on either side. Don't like local legislation? Vote or move.

Moving back to the 2A issues. A packed court of textualists, grants a great time to challenge the constitutionality of the '34, '68, and '86 NFA/GCAs - but I wouldn't be surprised if we don't get a ruling we like. Personally, what I want the most - is a challenge to the federal government's right to ban the addition of lawfully manufactured machine guns to the NFA Registry. I still do not understand the constitutionality behind the '86 law that closed the NFA Registry to machine guns, but not other weapons.

[blues]

Can we please just keep this discussion to the 2A?

[Default.mp3]

Did anyone read the original article? Yeah, the title is fairly click-baity, but the meat and potatoes of the article I thought was informative and not particularly alarmist.

[Jeep]

Moving back to the 2A issues. A packed court of textualists, grants a great time to challenge the constitutionality of the '34, '68, and '86 NFA/GCAs - but I wouldn't be surprised if we don't get a ruling we like. Personally, what I want the most - is a challenge to the federal government's right to ban the addition of lawfully manufactured machine guns to the NFA Registry. I still do not understand the constitutionality behind the '86 law that closed the NFA Registry to machine guns, but not other weapons.

Textualists/originalists could easily say that a ban on full autos violates the 2nd, while at the same time the registration scheme of the NFA is valid so long as the taxes are not so high as to be preclusive (as they were in 1934, but probably aren't know). Or to put it another way, they might agree with the registration of "assault weapons" (whatever they are defined to be) but not their banning.

Anyway, I doubt we get a full loaf from a textualist/originalist Court, but I think we get more than states like California, New York and New Jersey allow right now.

[Kukuforguns]

What was interesting to me was the fact that the "extremist" accusation reportedly came from Prof. Adam Winkler of UCLA and author of Gunfight. Prof. Winkler tries very hard (usually) to be a neutral commentator on the issues he discusses. My personal take is that although he dislikes guns and believes the 2d A is not needed now (if it was ever), he supports recognizing the 2d A as a part of the Constitution. Although I disagree with several of his interpretations of the 2d A, he is usually a voice worth hearing.

I was initially very surprised to see the "extremist" quote attributed to Prof. Winkler, but am beginning to believe it was accurate. Since Justice Kennedy announced his retirement, Prof. Winkler has been making gloom and doom statements re LGBT rights and Roe v. Wade. He appears to be deeply upset by the likelihood the balance of the Supreme Court will shift decisively towards originalism. I hope he finds his balance soon.

[Jeep]

What was interesting to me was the fact that the "extremist" accusation reportedly came from Prof. Adam Winkler of UCLA and author of Gunfight. Prof. Winkler tries very hard (usually) to be a neutral commentator on the issues he discusses. My personal take is that although he dislikes guns and believes the 2d A is not needed now (if it was ever), he supports recognizing the 2d A as a part of the Constitution. Although I disagree with several of his interpretations of the 2d A, he is usually a voice worth hearing.

I was initially very surprised to see the "extremist" quote attributed to Prof. Winkler, but am beginning to believe it was accurate. Since Justice Kennedy announced his retirement, Prof. Winkler has been making gloom and doom statements re LGBT rights and Roe v. Wade. He appears to be deeply upset by the likelihood the balance of the Supreme Court will shift decisively towards originalism. I hope he finds his balance soon.

Well, law professors are overwhelmingly left wing, and many of them well know that their own importance in politics comes from a "living" Constitution. If Constitutional rights come from, shockingly, the text and historical understanding of the document, most of their "scholarship" matters little. If, however, justices are free to do what their personal politics dictate (at least within the parameters of what the political system will tolerate) then law professors can help play a decisive role in creating what policies are currently "felt" to be constitutional and which not.

And that is the role he is apparently playing now. He is calling the potential nominees "extremists" on the 2nd amendment, and he is correct in legal-culture terms because very few law professors think that the second amendment should exist, and probably equally few believe that it should be interpreted in accordance with its language or historic understanding. Instead, they think that the second amendment should be considered to be a collective right, despite the utter implausibility of that view from a textual, functional, or historic basis.

That implies, of course, that five sitting Supreme Court justices (not to mention James Madison, Blackstone, Joseph Story and a host of others) are or were "extremists." But in the whacky world of legal academia that's an acceptable view.

[RevolverRob]

That implies, of course, that five sitting Supreme Court justices (not to mention James Madison, Blackstone, Joseph Story and a host of others) are or were "extremists." But in the whacky world of legal academia that's an acceptable view.

To be fair - Madison was an extremist. He was part of a separatist regime that broke away from historical leadership, demanded independence, and then fought an insurgency to accomplish their independence movement. That's kind of extreme. But one Brit's extremist is another's founding father...

None-the-less extremist views are neither here nor there, when it comes to interpretation of and application of the Constitution.

[Bergeron]

I would very much welcome a Supreme Court that would actually take on and hear 2A cases with the same interest that the rest of the Bill of Rights receives.

I remember an old VHS from when I was a kid back in the first half of the ninties, and getting interested in the Consititution, BoR, and little-l libertarianism. Several legal scholrs had these moderated debates about various issues and it blew my then-naive mind that while these talking heads were capable of nuanced, critical discussion of both sides of various BoR-related topics, there was unanimous agreement about infringing on 2A rights.

From the perspective of the last 25 years, and living in 2A-friendly states, it feels like we've been on a very postive upwards trend, and I heartily welcome the idea of a Supreme Court that thinks critically about the individual's right to keep and bear arms, and that is willing to take cases and look at laws.

[blues]

Things are looking up...from a 2A point of view.

[joshs]

If you are interested in Kavanaugh's view on the Second Amendment, I recommend reading his dissenting opinion in this case: https://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf

[TheNewbie]

If you are interested in Kavanaugh's view on the Second Amendment, I recommend reading his dissenting opinion in this case: https://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf

Is there a cliff notes version? Lol

[RevolverRob]

Is there a cliff notes version? Lol

Sure, in his dissent Kavanaugh said,


The fundamental flaw in the majority opinion is that it cannot persuasively explain why semi-automatic handguns are constitutionally protected
(as Heller held) but semi-automatic rifles are not.

And


The majority opinion next contends that semi-automatic handguns are good enough to meet people’s needs for self-defense and that they shouldn’t need semi-automatic rifles. But that’s a bit like saying books can be banned because people can always read newspapers. That is not a persuasive or legitimate way to analyze a law that directly infringes an enumerated constitutional right.

Finally,


In short, the majority opinion cannot persuasively explain why semi-automatic handguns are constitutionally protected but semi-automatic rifles are not.
In Heller, D.C. argued that it could ban handguns because individuals could still own rifles. That argument failed. Here, D.C. contends that it can
ban rifles because individuals can still own handguns. D.C.’s at-least-you-can-still-possess-other-kinds-of-guns argument is no more persuasive this time around. Under the Heller history- and tradition-based test, or the strict scrutiny test, or even the majority opinion’s own intermediate scrutiny test, the D.C. ban on semi-automatic rifles is unconstitutional.

[ssb]

I'm pleased with Kavanaugh. His track record is extensive and his views are thus verifiable. Judge Barrett may well have excited certain parts of the base due to her responses to Feinstein's questioning last year, but the flip side is that she's only been a judge for nine months. While she is well qualified to be a judge at this point, I don't know that I'd be comfortable elevating somebody with her lack of record to the Supreme Court.

Of note:

"It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that DC's ban on them is unconstitutional."

[pangloss]

To be fair - Madison was an extremist. He was part of a separatist regime that broke away from historical leadership, demanded independence, and then fought an insurgency to accomplish their independence movement. That's kind of extreme. But one Brit's extremist is another's founding father...

None-the-less extremist views are neither here nor there, when it comes to interpretation of and application of the Constitution.

Extremism in the defense of liberty is no vice, and moderation in the pursuit of justice is no virtue. -- B. Goldwater

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[idahojess]

Here's an article from Dave Kopel, breaking down Kavanaugh's dissent in the Heller II case.

https://reason.com/volokh/2018/07/09/judge-kavanaugh-and-the-second-amendment

[Glenn E. Meyer]

A conclusioni from the article:


Judge Kavanaugh's text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right.

The test will be if the Court voids the increasing number of state bans on various weapons and components. If not, the increasing creep of restrictions will continue.